1. What can be Patented?
2. Can Anyone Else Patent My Invention After I Disclose?
3. Can Someone Patent Another Person's Idea?
4. An Issued Patent vs a Published Patent Application
5. Determining If A Patent is Active
6. Confirming Claims
7. Assignments and Licenses

Can someone patent your invention? According to United States patent law, anyone who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent." So the short answer is yes. If you don't patent it first, someone else can!

What can be Patented?

An idea can not be patented. To obtain a patent, the idea must be presented in one of the following ways:

  • A new way of doing something
  • A piece of equipment
  • An article you manufactured
  • A new pharmaceutical drug
  • A new type of plant

To protect your rights to an invention, you must meet the following guidelines and obtain a patent:

  • Must be eligible for a patent
  • Must be novel or new
  • The invention or design must be useful in some way or show utility
  • Can not be obvious or common knowledge to anyone skilled in said field

Can Anyone Else Patent My Invention After I Disclose?

If another person has the same idea as you and files their application first, they can be awarded the patent instead of you. Someone can also make improvements to your invention and file a separate patent application for that improvement. Unlike other countries, the U.S. makes it possible for an inventor to get a patent even after publication if within the one-year grace time.

Take these simple steps to protect your invention:

  • File a patent application first, then tell others about your invention
  • If you do publish, make it public in any and all ways possible

Can Someone Patent Another Person's Idea?

The only way you can sue for patent infringement is if you have a patent through the USPTO.

  • 102(f) states that in order to apply for a patent, you must be the inventor. Proving this can be difficult and costly.
  • 102(a) states if your invention was published prior to someone else applying for a patent, it would be considered prior art and invalidate the application.
  • If you published more than a year prior to their patent application, it becomes invalid, regardless of when it was invented. As long as you can prove when publication date occurred, this is relatively easy to prove.

An Issued Patent vs a Published Patent Application

You can determine if you are looking at an issued patent or a published patent application by their serial number. Published patent applications will have a serial number that includes the application publish year followed by eight numbers. Issued patents are generally seven numbers long and do not identify a year.

Determining If A Patent is Active

It is important to determine if the patent you are looking at is still active. Many patents are expired or abandoned. Determining if a patent is active or expired can be challenging due to various applicable dates associated with them. To accurately determine if a patent is active or not, it is best to seek the services of a professional.

Confirming Claims

Claims can be difficult to understand so you may want to consult with a patent attorney. If they find the patent claim is not read on the idea, they may write a clearance opinion which can protect you from being responsible for punitive damages if you are found to have infringed on a patent.

Assignments and Licenses

If someone else does hold a patent on your invention but is not currently utilizing it, you may be able to license it for a share of equity or profits made from the patented invention. A license can be issued one of two ways:

  • If the license is non-exclusive, other licenses are able to be granted, possibly to your competitors.
  • If you have an exclusive license, no other licenses will be granted.

Another option is to offer to purchase the patent from the current holder. This can be expensive, but may provide many advantages, especially where future investors are concerned. The expense of purchasing an existing patent also removes any waiting periods and fees associated with filing and obtaining your own patent. There are benefits to finding creative ways to resolve patent situations.

If you need help answering "can someone patent your invention," you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law, and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures and Airbnb.